Citation Nr: 1234428
Decision Date: 10/03/12 Archive Date: 10/11/12
DOCKET NO. 09-26 867 ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York
THE ISSUE
Entitlement to payment of or reimbursement for unauthorized medical expenses incurred in connection with private medical services rendered at St. Elizabeth Medical Center from December 29, 2008, to January 6, 2009.
REPRESENTATION
Appellant represented by: Military Order of the Purple Heart of the U.S.A.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Hager, Counsel
INTRODUCTION
The Veteran served on active duty from July 1967 to February 1970.
This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Canandaigua, New York VA Medical Center (VAMC). In that decision, the VAMC declined to reimburse the Veteran for medical expenses incurred in connection with private medical services rendered at St. Elizabeth Medical Center from December 29, 2008, to January 6, 2009.
In May 2010, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record.
The Board remanded the claim in July 2010 and again in December 2011 for additional development. As the Board is granting the claim, consideration of whether the VAMC complied with the Board's remand instructions is unnecessary.
FINDINGS OF FACT
1. The Veteran presented to the Rome, New York VAMC on December 29, 2008 with chest pain; a treatment note indicated "transport to ED by ambulance."
2. The Veteran was admitted to St. Elizabeth Medical Center later that day, where he was found to have significant coronary artery disease (CAD), underwent a triple coronary artery bypass on January 3, 2009, and was discharged to his home on January 6, 2009.
3. At the time of the events of December 29, 2008 to January 6, 2009, service connection was in effect for diabetes; the Veteran was subsequently granted service connection for CAD secondary to diabetes and assigned a 100 percent rating effective December 28, 2008.
4. A prudent lay person would have reasonably expected that delay in seeking immediate medical attention on December 29, 2008 would have been hazardous to life or health.
5. Given the emergent nature of the Veteran's condition on December 29, 2008, and the decision by the VAMC to transfer the Veteran to a private hospital, a VA facility was not feasibly available, and an attempt to use them beforehand would not have been reasonable.
CONCLUSION OF LAW
The criteria for reimbursement or payment of unauthorized medical care expenses incurred in connection with private medical services rendered at St. Elizabeth Medical Center from December 29, 2008, to January 6, 2009 have been met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.126 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). However, as the Board is granting the only claim on appeal herein, further discussion of the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).
The Board notes that during the May 2010 Board hearing, the undersigned explained the issue on appeal and suggested the submission of evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).
Congress has authorized VA to reimburse veterans for unauthorized emergency medical treatment in two separate statutes, 38 U.S.C.A. §§ 1725 and 1728. The latter statute, 38 U.S.C.A. § 1728, applies only to veterans who met certain criteria relating to disabilities for which they have been granted service connection. See 38 U.S.C.A. § 1728(a)(1)-(4). In contrast, 38 U.S.C.A. § 1725 applies to non-service-connected veterans who meet certain eligibility requirements relating to participation in VA's health care system. See Fritz v. Nicholson, 20 Vet. App. 507, 509 (2006) (discussing the statutes prior to recent amendments which are not dispositive with regard to the issues on appeal herein).
The Board notes that 38 U.S.C.A. § 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act of 1999, and became effective May 29, 2000. Pub. L. No. 106-117, tit. I, § 111(1999), and this law was amended on February 1, 2010, by the Veterans' Emergency Care Fairness Act. Pub. L. No. 111-137, 123 Stat. 3495. Section 1725(b)(3)(C) now provides that to be eligible for reimbursement a veteran must be personally liable for emergency treatment furnished to the veteran, which includes not having "other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider." However, sections 1725 and 1728 provide alternative bases for reimbursement for unauthorized emergency medical treatment, and the Board will find below that the Veteran meets the criteria under section 1728. Consequently, consideration of section 1725 is unnecessary.
Under 38 U.S.C.A. § 1728, VA may reimburse a Veteran for the reasonable value of emergency treatment furnished in a non-VA facility, or in lieu of that, make payment directly to a hospital or other health care provider that furnished such treatment on behalf of the Veteran, if the following criteria are met:
(a) For Veterans with service connected disabilities, treatment not previously authorized is rendered for (1) an adjudicated service-connected disability; or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; or (3) any disability of a Veteran who is permanently and totally disabled as a result of a service-connected disability; or (4) for any illness, injury or dental disability in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31;
(b) such treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and
(c) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable.
38 U.S.C.A. § 1728; 38 C.F.R. § 17.120.
Failure to satisfy any one of the three criteria (a, b, or c) listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital. See Zimick v. West, 11 Vet. App. 45, 49 (1998). The term "emergency treatment" means, in pertinent part, a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health. See 38 U.S.C.A. § 1728(c) (referring to definition in 38 U.S.C.A. § 1725(f)(1)).
In this case, the evidence reflects that the Veteran presented to the Rome, New York VAMC on December 29, 2008 with chest pain. An addendum to the treatment note of that date noted elevated Troponin levels and indicated that the staff physician would prescribe medication "and transport to ED by ambulance." A St. Elizabeth Hospital discharge summary indicated that the Veteran was admitted on December 29, 2008, with complaints of chest and back pain. Testing revealed significant CAD, surgery was indicated, and the Veteran "was stabilized prior to being taken to the operating room on January 3, 2009," where he underwent triple coronary artery bypass surgery. The Veteran was discharged from St. Elizabeth Hospital on January 6, 2009.
The claims file contains a document entitled, "Non-VA Hospitalization Form," which was dated January 6, 2009 and signed by the Veteran. The form indicated, "I understand the risk and benefits of transferring and the risks and potential consequences of not transferring to the VA." The form then indicated that the Veteran was to choose one of the following options that applied: "(1) I choose to transfer to a VA facility, (2) I choose not to transfer to a VA facility. I understand that I will be responsible for bills for this hospitalization. I understand I have the right to refuse to transfer to the VA hospital. However, if I or my family refuse transfer to a VA hospital, the VA is no longer financially responsible for payment of services to the episode of care. (3) I elect to have Medicare and/or my private insurance billed for the hospitalization. I understand that VA is prohibited from paying any insurance balances; and (4) Patient refused to sign. The Veteran checked box 3. The form erroneously indicated that the date of admission was 1/2/09.
A VAMC document entitled report of contact with the heading "Notification of Admission to Private Hospital" indicated that authorization from December 28, 2009 at 17:02 was made to St. Elizabeth Medical Center with a tentative diagnosis of myocardial infarction, hypertension, and diabetes. A notation dated January 6, 2009, indicated that the VAMC received a faxed non-VA Hospitalization form from St. Elizabeth hospital indicating that the Veteran elected to have Medicare/private insurance pay for this admission.
In his written statements and Board hearing testimony, the Veteran indicated that he worked at the VAMC, had chest pains in the morning and went to sick call, and his primary care physician saw him in the morning. After seeing the results of his lab test, the physician told the Veteran that he had a heart attack and sent the Veteran by ambulance to St. Elizabeth Hospital. The Board finds the Veteran's testimony credible and consistent with the evidence of record.
At the time of his admission to St. Elizabeth Medical Center, the Veteran was in receipt of service connection for diabetes, rated 20 percent disabling. In his notice of disagreement, the Veteran indicated that many physicians had told him that his diabetes was a risk factor for cardiac conditions. He also noted that he had filed a claim for entitlement to service connection for CAD. In January 2010, the Veteran was granted entitlement to service connection for CAD, secondary to diabetes, and assigned a 100 percent rating, effective December 28, 2008, which the RO characterized as "the date of your myocardial infarction."
In its May 2009 statement of the case (SOC), the VAMC noted the above requirements for reimbursement or payment for non-VA medical expenses, but in its reason for decision noted only that the Veteran signed a non-VA hospitalization form electing to use private insurance.
In a February 2010 letter to Uptown Anesthesia Associates, the VAMC denied payment of unauthorized medical expenses on the ground that the Veteran had other health coverage.
In its September 2010 supplemental SOC (SSOC), the VAMC indicated that it had determined that the Veteran did not meet the criteria for payment or reimbursement. In the reason for decision, the VAMC noted that in considering a claim for payment of unauthorized medical expenses, the responsible officials must determine the Veteran's eligibility, entitlement, and medical needs, and wrote: "Patient signed non-VA hospitalization form electing to have private insurance billed; VA prohibited by law to pay balances." In an attached document, the VAMC summarized the facts indicating that the Veteran had "refused transfer and elected, on the day of discharge, to have his private insurance pay for the hospitalization." The author of the summary also wrote, "The Veteran feels that his non-VA hospitalization is related to his [service connected] condition and that is true, however, once a veteran refuses transfer and elects for their private insurance to pay, the form further states that the VA is prohibited from paying any insurance balances." The author of the summary also wrote, "The VA does not dispute that VA would have been responsible for payment to St. Elizabeth Hospital for this veteran's care. However, when the veteran/employee elected to have his third party insurance billed, the VA was no longer responsible for payment."
Initially, the Board finds, as the author of the summary conceded, that VA would generally be responsible for payment to St. Elizabeth Hospital or reimbursement of medical expenses incurred by the Veteran under 38 U.S.C.A. § 1728. Although he was not in receipt of service connection for CAD at the time of his December 29, 2008 admission, service connection was subsequently established for CAD effective the day prior to that date. Moreover, service connection was granted secondary to diabetes, for which the Veteran was in receipt of service connection at the time of admission, supporting the Veteran's report of being told his diabetes and CAD were related, something he was competent to report. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson competent to report contemporaneous medical diagnosis). The Veteran thus met either the requirement of 38 U.S.C.A. § 1728(a)(1) that treatment be rendered for an adjudicated service-connected disability or 38 U.S.C.A. § 1728(a)(2) that treatment be rendered for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability. In addition, as indicated in the RO's decision granting service connection for CAD, the Veteran in fact had a heart attack on December 29, 2008, reflecting that the treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health, thus meeting the requirement of 38 U.S.C.A. § 1728(b). Moreover, the decision by the VAMC to transfer the Veteran to St. Elizabeth reflected that VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable.
The only remaining issue is whether the Veteran waived his right to seek payment or reimbursement for the medical expenses he incurred at St. Elizabeth Medical Center by signing the non-VA Hospitalization form. For the following reasons, the Board finds that he did not.
As noted by the Veteran, the form was signed on January 6, 2009 (and erroneously indicated that the date of admission was January 2, 2009 rather than December 29, 2008), after the Veteran had already been transferred from the VAMC to St. Elizabeth. In light of this fact, the choices presented to the Veteran in the form are confusing. At the time he signed the form, the Veteran was being discharged to his home, but the introductory statement and the first two statements with boxes next to them would seem to indicate that the Veteran had to decide whether to transfer to a VA facility or non-VA facility. Those two statements would have been relevant and applicable to a situation in which the Veteran was being discharged from one health care facility to another for treatment, and was being asked whether or not he desired transfer to a VA hospital, with the choice of not being transferred to a VA hospital resulting in his being responsible for bills for this hospitalization and VA no longer being financially responsible for payment of services to the episode of care. These statements were not relevant to the situation the Veteran was in at that time, as he was being discharged from St. Elizabeth to his home. Yet the Veteran was required to check one of the boxes or refuse to sign the form. He checked the box for the only other statement listed on the form, which indicated that the Veteran elected to have Medicare and/or his private insurance billed for the hospitalization and that he understood that VA was prohibited from paying any insurance balances. There was no statement on the form indicating that the Veteran was being discharged to his home and would have to decide whether or not he would seek to have VA pay for or reimburse him for payment for his hospitalization for the previous week.
Moreover, there is nothing in the relevant statutes or regulations requiring that a decision be made at the time of discharge from a private hospital whether a veteran intends to seek payment or reimbursement from VA for payment or reimbursement of unauthorized medical expenses brought under 38 U.S.C.A. § 1728. Indeed, pursuant to 38 C.F.R. § 17.126, a threshold requirement for payment or reimbursement of unauthorized medical expenses brought under 38 U.S.C.A. § 1728 is that such a claim be filed within two years of such treatment. See 38 C.F.R. § 17.126(a) (2011). The Veteran met this requirement here.
In these circumstances, the Board finds that the Veteran's signature on the non-VA hospitalization form does not reflect that he intended, voluntarily and freely, to relinquish or surrender his right to seek payment or reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1728. See Janssen v. Principi, 15 Vet. App. 370, 374 (2001) (in order to waive rights guaranteed to him by an act of Congress, for example the VCAA, "a veteran must first possess a right, he must have knowledge of that right, and he must intend, voluntarily and freely, to relinquish or surrender that right") citing United States v. Olano, 507 U.S. 725, 732-33 (1993) (holding waiver is the " 'intentional relinquishment or abandonment of a known right' "); McCall v. U.S. Postal Service, 839 F.2d 664, 668 (Fed. Cir. 1988) (upholding employee's waiver of appeal of disciplinary action, Federal Circuit acknowledged that Merit Systems Protection Board had deemed such "right to appeal ... susceptible to waiver if the action was the informed, intentional abandonment of a known right, free of any coercion or duress"); Callicotte v. Carlucci, 698 F. Supp. 944, 946 (D.D.C.1988) (recognizing that whether "particular waiver is enforceable ... [depends on] whether it was made knowingly, voluntarily and freely"). As the Veteran did not intend, voluntarily and freely, to relinquish or surrender his right to seek payment or reimbursement under 38 U.S.C.A. § 1728 for unauthorized medical expenses incurred in connection with private medical services rendered at St. Elizabeth Medical Center from December 29, 2008, to January 6, 2009, and he has otherwise met the requirements for such payment or reimbursement under that statute, the claim on appeal must be granted.
ORDER
Entitlement to payment of or reimbursement for unauthorized medical expenses incurred in connection with private medical services rendered at St. Elizabeth Medical Center from December 29, 2008, to January 6, 2009, is granted, pursuant to 38 U.S.C.A. § 1728.
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs